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Royal Canadian Mounted Police (Re), 2025 OIC 29

Date: 2025-04-29
OIC file number: 5822-03252
Access request number: A-2021-05884

Summary

The complainant alleged that the Royal Canadian Mounted Police (RCMP) improperly withheld information under subsections 13(1) (confidential information from government bodies), 19(1) (personal information) and section 23 (solicitor-client privilege) of the Access to Information Act. This was in response to an access request for information related to the complainant on or around late 2000. The allegation falls within paragraph 30(1)(a) of the Act.

The investigation confirmed that the information withheld under subsection 19(1), section 23, and portions of information withheld under subsection 13(1) met the requirements for exemption. However, the Information Commissioner concluded that some of the withheld information did not meet the requirements of subsection 13(1). She also concluded that the RCMP had not taken reasonable steps to seek the consent of the government bodies from whom the information was obtained to disclose the information that qualified for exemption under subsection 13(1), as is required by subsection 13(2). 

The Commissioner ordered the RCMP to disclose the information that does not meet the requirements of subsection 13(1). The Commissioner also ordered the RCMP to seek consent of the government bodies pursuant to subsection 13(2) and, if given, reasonably exercise discretion to decide whether to release the information.

The RCMP gave notice to the Commissioner that it would implement the order.

The complaint is well founded.

Complaint

[1]        The complainant alleged that the Royal Canadian Mounted Police (RCMP) improperly withheld information under subsections 13(1) (confidential information from government bodies), 19(1) (personal information) and section 23 (solicitor-client privilege) of the Access to Information Act. This was in response to an access request for information related to the complainant on or around late 2000. The allegation falls within paragraph 30(1)(a) of the Act.

[2]        The Office of the Information Commissioner (OIC) separately investigated the complainant’s allegation that the RCMP did not conduct a reasonable search in response to the same request (5822-04558).

Investigation

[3]        When an institution withholds information under an exemption, it bears the burden of showing that refusing to grant access is justified.

Subsection 13(1): confidential information from government bodies

[4]        Subsection 13(1) requires institutions to refuse to disclose information obtained in confidence from certain government bodies.

[5]        To claim this exemption, institutions must show the following:

  • The information was obtained from one of the following government bodies:
    • a government of a foreign state or an institution of a foreign state;
    • an international organization of states or an institution of such an organization;
    • a provincial government or institution;
    • a municipal or regional government or institution; or
    • an aboriginal government or council listed in subsection 13(3).
  • The information was obtained from the government body in confidence—that is, with the understanding that it would be treated as confidential.

[6]        When these requirements are met, institutions must then consider whether the following circumstances (listed in subsection 13(2)) exist:

  • The government body from which the information was obtained consents to its disclosure.
  • That body has already made the information public.

[7]        When one or both of these circumstances exist, subsection 13(2) requires institutions to reasonably exercise their discretion to decide whether to disclose the information.

Does the information meet the requirements of the exemption?

[8]        The RCMP withheld emails exchanged between members of the RCMP and an international organization at pages 821-846 pursuant to paragraph 13(1)(b).

[9]        I accept that the emails sent by the international organization to the RCMP were obtained from an international organization of states or an institution of such an organization.

[10]      I do not accept that the emails authored by RCMP members meet this requirement. To the extent that certain portions of these emails reflect information provided by the international organization (first sentence of the second paragraph of the email found on pages 823, 829 & 837), I accept that the information can be considered obtained from an international organization.

[11]      However, the remainder of these emails cannot be considered obtained within the meaning of paragraph 13(1)(b).

[12]      As a result, I conclude that the emails sent by the RCMP members from their RCMP email addresses were not obtained from an international organization.

[13]      The RCMP also withheld portions of the complainant’s criminal record, as well as information related to an investigation on pages 11-12, 112, 569, 575 and 679 under paragraph 13(1)(d). I accept that this information was provided by a municipal policing organization, thereby meeting the first requirement.

[14]      Turning to the final requirement of subsection 13(1), the RCMP must demonstrate the confidential nature of the information at issue. The RCMP explained that it has an agreement with other policing organizations to protect any information provided and that disclosing the information could impair or even destroy the relationship between the organizations. In addition, the RCMP provided a copy of their information sharing agreement with the policing organization, which confirms that the information is shared in confidence.

[15]      I conclude that the information obtained from the municipal policing organization and the international organization was obtained from the government bodies in confidence—that is, with the understanding that it would be treated as confidential.

Did the institution reasonably exercise its discretion to decide whether to release the information?

[16]      Since some of the information meets the requirements of subsection 13(1), the RCMP was required to reasonably exercise its discretion under subsection 13(2) to decide whether to disclose the information when:

  • the government body from which the information was obtained consents to its disclosure; or
  • that body has already made the information public when it responded to the access request.

[17]      I accept that the information has not been made publicly available by the relevant government bodies so as to permit disclosure under paragraph 13(2)(b).

[18]      However, under paragraph 13(2)(a), the RCMP was required to make reasonable efforts to seek consent from the government bodies from which the information was obtained. The RCMP claimed that seeking consent from the government bodies would jeopardize its ability to maintain good relationships. The RCMP however failed to cogently explain how merely consulting other government bodies about consent could reasonably be expected to have such a result.

[19]      Considering the foregoing, it was unreasonable for the RCMP to have failed to seek consent in order to ascertain whether conditions would permit disclosure under paragraph 13(1)(a).

Subsection 19(1): personal information

[20]      Subsection 19(1) requires institutions to refuse to disclose personal information.

[21]      To claim this exemption, institutions must show the following:

  • The information is about an individual—that is, a human being, not a corporation.
  • There is a serious possibility that disclosing the information would identify that individual.
  • The information does not fall under one of the exceptions to the definition of “personal information” set out in paragraphs 3(j) to 3(m) of the Privacy Act (for example, business contact information for public servants).

[22]      When these requirements are met, institutions must then consider whether the following circumstances (listed in subsection 19(2)) exist:

  • The person to whom the information relates consents to its disclosure.
  • The information is publicly available.
  • Disclosure of the information would be consistent with section 8 of the Privacy Act.

[23]      When one or more of these circumstances exist, subsection 19(2) of the Access to Information Act requires institutions to reasonably exercise their discretion to decide whether to disclose the information.

Does the information meet the requirements of the exemption?

[24]      The RCMP applied subsection 19(1) to withhold the information of identifiable individuals other than the complainant, such as their contact information, health information and records of their interactions with the RCMP.

[25]      I accept that the information is about individuals, that there is a serious possibility that disclosure of the information would identify those individuals, and that the information does not fall under any of the exceptions to the definition of personal information set out in section 3 of the Privacy Act.

[26]      In light of the above, I conclude that the information meets the requirements of subsection 19(1).

Did the institution reasonably exercise its discretion to decide whether to release the information?

[27]      Since the information meets the requirements of subsection 19(1), the RCMP was required to reasonably determine whether any of the conditions set out in subsection 19(2) permitted disclosure and, if so, to reasonably exercise its discretion when deciding whether or not that information would be disclosed.

[28]      I accept that the circumstances outlined in subsection 19(2) did not exist:

  • it would not have been appropriate to seek the consent of the individuals to whom the personal information relates, given the nature of the records.
  • the information is not publicly available.
  • the disclosure of the information would not be consistent with section 8 of the Privacy Act.

[29]      In light of the above, I conclude that the circumstances set out in subsection 19(2) did not exist when the RCMP responded to the access request. Consequently, there is no need to examine the issue of discretion.

Section 23: solicitor-client privilege

[30]      Section 23 allows institutions to refuse to disclose information subject to solicitor-client privilege or the professional secrecy of advocates and notaries when the information relates to legal advice given to a client.

[31]      To claim this exemption with regard to solicitor-client privilege, institutions must show the following:

  • The information consists of communication between a lawyer or notary and his or her client.
  • That communication relates directly to the seeking or giving of legal advice, including all the exchanges of information needed to give legal advice.
  • The parties intend the communication and advice to remain confidential.

[32]      When these requirements are met, institutions (as the owner of the privilege) must then reasonably exercise their discretion to decide whether to disclose the information.

Does the information meet the requirements of the exemption?

[33]      The RCMP withheld two sentences on page 111 pursuant to section 23.

[34]      I accept that the information consists of communications between clients and their lawyers that relates to legal advice, and that the parties intended for the communications to remain confidential.

Did the institution reasonably exercise its discretion?

[35]      Since the information meets the requirements of section 23, the RCMP was required to reasonably exercise its discretion to decide whether to disclose the information.   In doing so, the RCMP had to consider all the relevant factors for and against disclosure.

[36]      An institution’s decision not to disclose information must be transparent, intelligible and justified. An institution’s explanation will be sufficient when the institution provides details of how it made the decision and when the documents related to the decision-making process shed light on why the institution proceeded as it did.

[37]      The RCMP stated that it considered whether the information falls within the scope of the exemption, as well as the public interest in disclosure and the fact that release would create a sense of distrust between the parties. Ultimately, the RCMP exercised its discretion to withhold the information at issue.

[38]      I conclude that the RCMP considered all relevant factors when it decided not to disclose the information. Consequently, the exercise of discretion by the RCMP was reasonable.

Outcome

[39]      The complaint is well founded.

Orders

I order the Minister of Public Safety and Emergency Preparedness to:

  1. Disclose all information that does not meet the requirements of subsection 13(1). The information that must be disclosed is found on pages 822-823, 825-829, 831-834,836-837, 839-846.
  2. Seek consent, and if given, reasonably exercise discretion to decide whether to release the information that meets the requirements of subsection 13(1). This information is found on pages 11-12, 112, 569, 575, 679 and portions of 821-824, 828-830, 834-838.

Initial report and notice from institution

On March 31, 2025, I issued my initial report to the Minister of Public Safety and Emergency Preparedness setting out my orders.

On April 25, 2025, the Director General, Access to Information and Privacy Branch gave me notice on behalf of the Minister of Public Safety that they intend to implement the orders in full.

Review by Federal Court

When an allegation in a complaint falls under paragraph 30(1)(a), (b), (c), (d), (d.1) or (e) of the Act, the complainant has the right to apply to the Federal Court for a review. When the Information Commissioner makes an order(s), the institution also has the right to apply for a review. Whoever applies for a review must do so within 35 business days after the date of this report and serve a copy of the application for review to the relevant parties, as per section 43. If no one applies for a review by this deadline, the order(s) takes effect on the 36th business day after the date of this report.

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